RASCHPAL SINGH v. DIRECTOR OF IMMIGRATION

HCAL 94/2018

[2019] HKCFI 1029

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 94 of 2018

 Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.  an extension of time for the application for leave to apply for Judicial Review of the decision of the Director` of Immigration made on 7 June 2017 refused; and

2.  leave to apply for Judicial Review dismissed.

It is further directed that:

3.  if the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

4.  when filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

5.  the court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

6.  if the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

7.  liberty to apply.

Observations for the Applicant:

1. The applicant is a 37-year-old national of India who arrived in Hong Kong on 19 June 2014 with permission to remain as a visitor up to 3 July 2014 when he did not depart and instead overstayed and was arrested by police on 30 May 2016. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his neighbor over a land dispute in his home village.

2. The applicant was born and raised in Village Rokhe, Tehsil Ajnala, District Amritsar, Punjab, India.  After leaving school he mainly farmed on his family farmland in his home village but had also worked in Dubai between 2003 and 2009 as a construction worker.

3. In 2010 he inherited from his father his share of the family farmland on which he grew rice and wheat.  One day in 2012 his neighbor Babu approached him with an offer to purchase his farmland.  Both Babu and his father were wealthy landowners in the village with political connections, but the applicant refused to sell his land as he needed it to grow his crops for his living and therefore rejected Babu’s offer.

4. One afternoon in 2013 Babu with several men drove a tractor onto the applicant’s farmland and ruined his crops, of which Babu warned him that it was a lesson for his refusal to sell his land to him, and that if he continued to resist selling his land, more bad things would come to him.  After the incident, the applicant reported the matter to the police but received no assistance.

5. One day in late 2013 Babu with his men again came onto the applicant’s farmland and demanded that he signed the transfer document of the land over to him, but when the applicant refused, Babu and his men hit him with wooden sticks until his neighbours came to his assistance, and before Babu left with his men he threatened the applicant that next time he would be killed.

6. After the assault the applicant left his home to take shelter at his aunt’s place in Chandigarh City, but when he heard that Babu and his men had come to his home looking to kill him, the applicant decided that it was no longer safe to remain in India, and so on 19 June 2014 he departed for Hong Kong where he overstayed and subsequently raised his non-refoulement claim, for which he completed a Non-refoulement Claim Form on 19 May 2017 and attended screening interview before the Immigration Department with legal representation form the Duty Lawyer Service.

7. By a Notice of Decision dated 7 June 2017 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 risk”),and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

8.  In his decision the Director took into account all the relevant circumstances of the applicant’s claim and found no substantial grounds for believing that he would be harmed or killed by Babu upon his return to India as Babu just wanted to buy his land, that it was a private dispute between them without any official involvement that state or police protection would be available to the applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread across a vast territory of more than 3.2 million square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other part of India away from his home district in large cities such as Delhi, Kolkata or Chandigarh where he had stayed before without incidents and where it would be difficult if not impossible for Babu or his men to locate him.

9.  On 30 June 2017 the applicant filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, but before it was heard or dealt with by an adjudicator for the Board, the applicant on 9 October 2017 in writing requested to withdraw his appeal as “it was safe for him to go back to India”.

10.  On 12 October 2017 the Board in writing acknowledged his request, dismissed his appeal and confirmed the Director’s decision.

11.  However, two months later on 14 December 2017 the Board received another letter from the applicant requesting to re-open his appeal as he “could not go home as his life was still in danger”.

12.  On 19 December 2017 the Board replied to inform the applicant that as it had earlier already acceded to his request to withdraw his appeal which had as a result been dismissed,and as such the Board has no power or authority to deal any further with his appeal. 

13.  On 18 January 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Director’s decision, which is the matter now before me, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely repeated his claim that his life would be in danger in his home country, and asked for more time to provide further supporting documents but which up to now he has not done so.

14.  By then he was of course also way out of time with his application, as Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made. 

15.  As the last day of the three-month period for the applicant to file his Form 86 fell on 7 September 2017, he was therefore more than four months late with his application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

16.  In the applicant’s case a delay of more than four months must be regarded as substantial, for which he did not provide any explanation in his affirmation, nor did he request for any oral hearing so that an explanation might be extracted from him, but even assuming the possibility that the delay may have been caused by his earlier withdrawal of his appeal and his subsequent attempt to re-open it, given the absence of any details or particulars as to what caused such changes of his mind about his appeal, I am not satisfied in the circumstances that he has provided any good reason for his delay.

17.  More importantly, as noted above he has not put forward any ground for his intended challenge, and in the absence of any reasonably arguable basis I am unable to see any merits or prospect of success in his intended application.

18.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

19.  In the premises and having considered the Director’s decision with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in it, or any failure on his part to apply high standards of fairness in his consideration and assessment of the applicant’s claim.  

20.  The fact is that it has been correctly established by the Director that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.  

21.  For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and in the absence of any good reason for his substantial delay, I refuse to extend time and accordingly his application is dismissed.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1